Excerpt: - 1. this appeal is directed against the decision of the learned district judge of midnapore, dated 3rd july 1930, allowing an application for setting aside a sale. the decision arrived at by the learned district judge was passed in an appeal from an order made by the munsif of garbetha, on 29th april 1929, dismissing the application for setting aside a sale. the trial court on the materials before it, held that the application so far as it purported to be one under section 173(3), ben. ten. act, was barred by limitation. according to the munsif, the applicants for setting aside the sale could not be allowed to avail themselves of the provisions contained in section 18, limitation act, because the decree-holder was not a party to the fraud alleged in the application for setting aside the.....

Judgment:

1. This appeal is directed against the decision of the learned District Judge of Midnapore, dated 3rd July 1930, allowing an application for setting aside a sale. The decision arrived at by the learned District Judge was passed in an appeal from an order made by the Munsif of Garbetha, on 29th April 1929, dismissing the application for setting aside a sale. The trial Court on the materials before it, held that the application so far as it purported to be one under Section 173(3), Ben. Ten. Act, was barred by limitation. According to the Munsif, the applicants for setting aside the sale could not be allowed to avail themselves of the provisions contained in Section 18, Limitation Act, because the decree-holder was not a party to the fraud alleged in the application for setting aside the sale. As indicated above, the learned Judge in the Court of appeal below has differed from the decision arrived at by the trial Court. According to the learned District Judge, the applicants were in a position to avail themselves of the benefit of Section 18, Limitation Act, although the decree holder was not a party to the fraud alleged in the application. The application was accordingly held by the learned District Judge not to be barred by limitation, and he has, accordingly, given the applicants the relief they prayed for in the application. The auction-purchaser has appealed to this Court, and there is also an application on his behalf under Section 115, Civil P. C, for revision of the order passed by the learned District Judge, on appeal.

2. It has, at the outset, been represented to us that in view of the admitted facts of the case, there was no appeal to this Court allowed by law; but it was contended in support of the application for revision that no appeal lay under the law to the learned District Judge in this case; the decision given by the learned Judge in appeal, was wholly without jurisdiction and must therefore be set aside, and the decision of the trial Court dismissing the application for setting aside the sale restored. So far as the question whether any appeal lay to the learned District Judge or not, is concerned, we are of opinion that the question before the Court to be decided in the application for setting aside the sale, was a question relating to the execution and satisfaction of the decree, as between the parties to the suit. In this view of the matter the learned District Judge was right in holding that Section 47, Civil P. C, was applicable in a case like the present and therefore an appeal as presented before him was maintainable under the law. Reference has been made to certain decisions of this Court to substantiate the position that Section 47 was not applicable to a case like the one before us; it is impossible however to hold that any of the decisions to which reference has been made goes so far as to lay down the general proposition that Section 47 would not be held to be applicable to the facts and circumstances of a case like the present. In our judgment there was an appeal to the learned District Judge, and the decision arrived at by the learned Judge is not in any way without jurisdiction. If there was an appeal to the District Judge, as we hold there was, an appeal lay to this Court, and we propose to deal with the appeal preferred by the appellant.

3. In support of the appeal, it has been urged in the first place that Section 18, Limitation Act, would have no application whatsoever in a case of this description, unless the decree-holder was a party to the fraud. It is not possible for us to give effect to this contention advanced on behalf of the appellant. Upon a proper reading of Section 18, Limitation Act, as it stands, and upon the view taken by a Full Bench of this Court in the case of 17 Cal. 769(1), where it was expressly noticed in one of the judgments delivered by the Full Bench, that:

'under Section 18, Limitation Act, where irregularities affecting the validity of the sale have, by the fraud of the judgment-creditor or other parties to the sale, been kept concealed from the judgment-debtor, he is entitled whether the sale has been confirmed or not, to make, as against the person guilty of the fraud or necessary thereto, such application, if any, under Section 311 as he may be entitled to make, his time for making it being computed from the time when the fraud first became known to him.

4. In the case before us, there are concurrent findings of fact that the auction-purchaser against whom the application for setting aside the sale was directed, along with some of the judgment-debtors, was guilty of fraud. In that view of the case, it could not be maintained, as a point of law, that the applicants for setting aside the sale were not in a position to avail themselves of the provisions contained in Section 18, Limitation Act

5. The last contention urged on behalf of the appellant is that Section 173, Ben. Ten. Act, was not applicable at all to the facts and circumstances of the case before us, and no relief could be granted to the applicant under the provisions contained in Section 173, Ben. Ten. Act. The point thus raised in second appeal for the first time, was not raised before any of the Courts below; and we are unable to say upon the materials before us that the question raised before us as to the non-applicability of Section 173, Ben. Ten. Act, has any substance in it.

6. In the result, the appeal fails and is dismissed. The application under Section 115, Civil P. C, for revision of the order passed by the learned District Judge, is rejected. We make no order as to costs either in the appeal or in the application.